Vague lawmaking risks creating ‘thought crimes’

Federal Communication Minister Michelle Rowland. Picture: Damian Shaw

Whether we like it or not, freedom of communication in this country is dying because of unrelenting attempts to control not just what we say, but what we think.

The tragedy for Australia is this attack on freedom of conscience has been ushered in not by authoritarian forces from abroad, but by some of our best minds who are lost in an intellectual wilderness.

Free speech is being squeezed by two sets of rules: one restricts what can be said, while the other dictates what must be said.

We are rushing towards an Orwellian nightmare, oblivious to the destruction of liberty caused by vague lawmaking and the rise of what amounts to “thought crimes”.

Every new restriction on speech that rejects precision and instead seeks to punish some ill-defined concept such as “harm” or “hatred” is wrong for two associated reasons.

Such laws mean the judiciary is ultimately forced to fill the gaps that politicians left in the law. That risks bringing the judiciary into disrepute, but it also destroys freedom under the law.

This idea, which can be traced back to Magna Carta, requires the law to be clear and capable of being known in advance.

At one end of this spectrum of bad lawmaking we have a plan flagged in November by Communications Minister Michelle Rowland.

She wants to impose a statutory duty for online entities to take reasonable care “to keep users safe from online harms”.

Legislating to punish “harms” instead of something specific would permit federal regulators to punish the dissemination of a category of speech whose boundaries would intentionally be left undetermined.

That’s the opposite of orthodox lawmaking which seeks to maximise freedom under the law by clearly outlining – and thereby restricting – the boundaries of conduct that is deemed unlawful.

At the other end of the spectrum, we are witnessing the rise of compelled speech – a concept that was predicted in George Orwell’s novel, 1984.

Macquarie University’s law school is at the forefront – coercing students into reciting politically contested ideas about Indigenous affairs.

At the heart of this misuse of power is the belief that coercion can eliminate “wrong thought” and replace it with “right thought”.

Outlawing hate, for example, is currently fashionable – particularly among politicians in NSW and Victoria who sat on their hands for more than a year while Jew-baiting lunatics took over our streets and public places.

Here’s the bad news: outlawing hate and the incitement to hate won’t solve this problem. Hate is an emotion, not a tangible act. Outlawing the incitement of a thought – even a repugnant thought – is a dangerous frontier for a nation that values liberty. It is also a guarantee of bizarre lawmaking.

This helps explain why politicians in NSW and Victoria have accompanied their hate speech schemes with exemptions and defences that are designed to protect favoured groups whose actions would otherwise have sent them to prison.

We saw this in NSW where the newly enacted law against inciting racial hatred actually has an exemption for hate preachers.

Hate preachers in that state are still free to incite racial hate as long as they cite a religious text or engage in religious teaching or discussion.

The only thing this exception is guaranteed to achieve is profound cynicism.

At least the new category of criminal speech in NSW only applies to public statements. That is not the case with a similar plan in Victoria which, if enacted, would apply to public and private statements.

The speed of our national decline can be gauged by the shock that followed a statement eight years ago by Gillian Triggs when she was president of the Australian Human Rights Commission.

She had lamented: “Sadly you can say what you like around the kitchen table.”

At the time, Triggs was embroiled in debate over section 18C of the Racial Discrimination Act which makes it a civil offence to offend, insult, humiliate or intimidate people on the basis of race.

The Victorian scheme, which is outlined in the Justice Legislation Amendment (Anti-Vilification and Social Cohesion) Bill, is stalled in the Legislative Council while the government tries to win support from the Greens.

If enacted, the Victorian bill against inciting hate speech would extend beyond race and would cover religion and other factors – something that has not been ruled out in NSW.

One of the main problems with the Victorian scheme is that it would operate using an intensely subjective test for liability – just like the mechanism at the heart of section 18C.

And that is why the state Liberal Party is refusing the support the bill in its current form.

Those who support hate speech laws should consider what the Victorian bill would mean for those who engage in public or even private criticism of aspects of Islam that expose that religion to severe ridicule.

If this scheme is approved, it could send serious critics of Islam to prison.

Until recently, the bill also contained a defence that is just as bizarre as the hate-preachers exemption in NSW.

It would have permitted incitement of racial or religious hatred so long as it was for “a genuine political purpose”.

That defence has now been dumped, but it reveals a great deal about the thinking behind this scheme.

On March 4, the Liberal Party’s Evan Mulholland told the Legislative Council: “Under the previous version of this bill you could scream terrible things at Jewish Victorians but as long as you threw in the occasional ‘Zionist’, then it was protected speech,” Mulholland said.

Chris Merritt is vice-president of the Rule of Law Institute of Australia